I began an earlier draft of this blog post with the encouraging message: We all should go to judicial investitures. That followed on the heels of two great judge swearings-in—for Court of Appeals Judges Randall Howe and Sam Thumma. For my time and money, there may be no events that provide more insight into what makes judges tick than those events. And I believe that is true for all attendees, whether they are a lawyer or not.

But then I read a news story this week that reminded me it will take more than a heartfelt gathering to remind Arizonans that we have a terrific judiciary (perhaps the finest in the country). Being cynical and all, I’m not convinced we voters are up to the task of understanding and preserving what we’ve got. But I’m hoping I can be proven wrong.

Right off the bat, let me assure you I’m not urging a vote one way or another on the Justice’s retention. That is between you and whatever data you have available. This post is about the data.

Anyway, as Howie describes it:

“A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his post. … The anger is focused on [Justice John] Pelander because the Supreme Court earlier this year ruled that Proposition 121 can be on the ballot. That measure, if approved, would amend the state Constitution to create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.”

Hon. John Pelander

Again, you should vote in the retention election however you’d like. But this whole dustup is about … Prop 121?

As always, the Chief is judicious (part of the job title, I think). But the op-ed does reveal some raised hackles:

“[U]nfortunately, in this age of social media, blogs and e-mail, anyone can post anything concerning a judge without regard to accuracy. Judges may be unfairly portrayed or information about rulings may be misrepresented by people who have an agenda or have simply misunderstood an opinion.”

I’m confident that my lawyer–readers will not moan about having to read a 6-page ruling. But if you have non-lawyer colleagues who ask about this issue, urge them to read it, too.

I can suggest that for one big reason: It’s well written (by Justice Bales, the order’s author), which means it is accessible to many, not merely to lawyers.

I also can suggest it because reading the actual ruling will remind us all that the Court (and Justice Pelander) did not affirm or deny the merit of Prop 121; it handled the election question—judiciously—as it does with countless other ballot-measure cases, year after year.

As a voter service, I’ve posted the ruling here. But because I have no interest in creating a firestorm of partisan claims, I’ve also posted the appellant and appellee briefs. I suppose if you want the full picture, you may want to read those too. But do start with that ruling.

That’s in the short term. But in the long term, one wonders what kind of Pandora’s box has been opened. We need only look to Texas, or Iowa, or numerous other states to see the insertion of political pressure into judicial retention elections. In those places, justices may sit stonily and ethically silent amid an onslaught of public critique. But the result may be the ouster of good people, along with a further coarsening of the discourse.

Many, many people in Arizona (including a majority of the voting public) support Arizona’s current system of merit selection for certain judges and justices. But even if that system is retained going forward, how will it be altered if groups—“loosely organized” or not—mobilize to transform retention elections into a shouting match? How many people will be interested in the job of judge when the quality of their work is assessed not on the swath of legal output that fills volumes like sea foam covers a beach? Instead, it could be upended by a single, particular ruling in which you’ve joined, a ruling that grabs the popular imagination for misunderstood reasons—a single seashell on a vast coral reef.

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We as voters are asked to read the voter information for judicial retention. It is at least this readers conclusion that the information is so biased that a voter can not make a rational or inteligent decision. The Commission on Judicial Conduct refuses to discipline sitting Superior Court Judges let alone higher judges on ethical violations.

Read the Judicial Complaint on William J. O’Neil, the Arizona Supreme Court Presiding Disciplinary Judge and make up your own mind if any ethical violations have occoured. Now lets just see what the Commission on Judicial Conduct does …. could it be they find the charges unfounded. Read the complaint and look at the evidence, you decide.

[…] (Arizona, which has merit selection for appellate courts and the three largest counties, was mentioned in the study in regard to political fights over judicial selection. I wrote about one high-profile judicial retention election here.) […]